Evidence of meeting #50 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was document.
A recording is available from Parliament.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Mr. Chairman, I would like to begin by asking you to clarify something for me. I hope that the time taken to address my question will not be deducted from my time for questioning the witnesses.
I did not fully understand what you said about getting an unexpurgated version of the Department of Foreign Affairs and International Trade internal report. Did you say that an official request was going to be filed?
Liberal
The Chair Liberal Tom Wappel
No. In the context of Mr. Reid's letter, the issue becomes whether or not the documents referenced in that letter fall within the definitions of documents under the Security of Information Act.
I asked Mr. Walsh on behalf of the committee to postulate, for the purposes of his opinion, that if an unexpurgated version of the report were given outside the confines of the department, whether or not the possession of that by someone outside the Department of Foreign Affairs would constitute a document as defined under the Security of Information Act and have certain obvious consequences, including various offences.
I'm not making a request or anything. We've already been told by Mr. Walsh that we can make the request and the department can turn us down. Then we can do a whole number of things, including report to the House in general and ask the House to make some order.
Just so you're clear, I just asked him if the unexpurgated version made its way to someone outside DFAIT whether that in itself would be a document as defined under the Security of Information Act, which would then have certain consequences under that act.
And none of that comes out of your time.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Thank you very much, Mr. Chairman.
Could we also file a request for an unexpurgated version of the document? Could we file an official request? I know that we have already asked for it. We received a reply from an official. However, could we not try another approach, perhaps contacting the minister himself, for example? That might be a good way to go about it. On that note, I am now going to turn my attention to our witnesses, as I also have some questions for them.
As you can see, obtaining an expurgated version of the report is of great concern to us. It would be very useful for our study.
My first question is for Mr. Marleau, the Information Commissioner.
Mr. Marleau, last week we heard testimony from Ms. Sabourin, who is responsible for access to information at the Department of Foreign Affairs. We know that your office gave the Department of Foreign Affairs an F, which is not the best grade that a department can receive, quite the opposite.
Ms. Sabourin also said that at one time, she was only able to respond to 39 per cent of the access to information requests within the statutory timeframe. She is now able to respond to 80 per cent of the requests within this timeframe and says that she's very proud of this achievement. However, as you know, the act stipulates that the timeframe must be respected in all cases. She should be responding to 100 per cent of the access to information requests within the statutory timeframe, yet she states proudly that she does so in 80 per cent of the cases. Frankly, I find her tone and her approach to be indicative of a certain disdain for the Canadian public.
Furthermore, she refused to provide Professor Attaran with a report offering an overview of the human rights situation in all of the world's countries, saying that such a report does not exist. Although she knew full well that reports were produced on each country, she chose simply to say that there was no report dealing with all countries.
Such an attitude is rather appalling. I think that she had a responsibility to tell him that reports on each individual country were available. Do you think that it is standard practice, among other things, to respond to only 80 per cent of requests and to refuse to provide a document because the request was not clear enough?
Information Commissioner, Office of the Information Commissioner of Canada
Mr. Chairman, I think that Ms. Sabourin was referring to the performance score awarded to the department last year, which was indeed an F. There has been considerable improvement this year. In my annual report that was tabled this week, the department was awarded a D. Although it might not seem like much, the percentage of cases not handled within the stipulated timeframe has dropped from 60 per cent to 17.2 per cent.
The previous deputy minister, along with my predecessor, worked hard to structure the system and to try to improve the access to information services offered to Canadians by his department. I do not consider a D to be acceptable, but, in the report, my office recognizes the efforts that have been made to improve the situation.
With regard to Ms. Sabourin's attitude, it is not for me to comment on how a witness behaves when appearing before a parliamentary committee. It is, however, utterly unacceptable for Canadians not to receive statutory services. That being said, I do not think for a moment that deputy ministers get up in the morning thinking about how they can best contravene the Access to Information Act.
There is, however, a considerable lack of leadership. The amendments that Parliament made to subsection 4(2.1), if I'm not mistaken, which will not come into force until September, introduce the notion of an additional duty to provide all reasonable assistance to respond to the requests made by the public.
Parliament perhaps wanted to ratchet responsibility up a notch. With this amendment, not only does the coordination officer in the office serving the public have a responsibility, but the head of the agency also has a duty to assist. As soon as the amendment comes into force, my team and I will discuss how we can change our approach in order to evaluate this new responsibility in our reports to Parliament.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Is it common practice for an ATI team to unilaterally decide to restrict access to information by, for example, removing the word "torture" each time a citizen files a request for documents? Is that normal practice? Does the act provide something that—
Information Commissioner, Office of the Information Commissioner of Canada
No. Subsection 15(1) of the act stipulates that discretionary exemptions can only be granted if disclosure would be injurious. In the annual report that will be distributed this morning—I know that you have not yet had time to read it—we refer to a similar case. No two cases are ever identical, but section 15 was invoked in the Maher Arar case. The report states the following with regard to invoking subsection 15(1) as a basis for saying no—and not just because of the word "torture"—:
...it must be borne in mind that speculative fears of possible injury from disclosure are insufficient. There must be a reasonable expectation, at the level of a probability, that injury to the intelligence or enforcement activity will result.
Information Commissioner, Office of the Information Commissioner of Canada
Page 55.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Subsection 15(1) comprises a number of paragraphs setting out the 10 grounds on which a request can be refused. Would it not be common practice to specify 15(1)(b) or 15(1)(d), for example, rather than simply stating 15(1)?
Information Commissioner, Office of the Information Commissioner of Canada
Some responses simply state subsection 15(1), while others give more details. Investigators look at the details. Subsection 15(1) comprises nine paragraphs. Investigators look into why information was denied. They would at least find out and assess which paragraph had been used to justify the decision. However, there is jurisprudence on this provision.
I am going to ask Mr. Brunet to elaborate on this point.
Daniel Brunet Director, Legal Services, Office of the Information Commissioner of Canada
In the Vienneau case, which was brought before the Federal Court, the complainant cited exactly this issue in his complaint to the Office of the Information Commissioner. His ATI request was denied and he was simply told that subsection 15(1) had been invoked. He was not given any further information and was not told which paragraph of the subsection had been invoked. He complained about that. The Federal Court referred the case to the court of first instance. Citizens are entitled to file complaints with the commissioner. The commissioner then carries out an inquiry and seeks further clarification. If the case ends up before the courts, the supplementary information is revealed through the judicial process.
Bloc
Liberal
The Chair Liberal Tom Wappel
Excuse me, Mrs. Lavallée.
On your point, Madame, I just want to remind you again that the foreign affairs committee specifically passed a resolution asking that the Department of Foreign Affairs provide an unexpurgated copy of the report to the committee. That request was turned down by the deputy minister, and a copy of his letter was sent to me, in effect saying--by the way I read it--that if we make the same request, we're going to get the same answer. We're then at a stage at which Mr. Walsh told us that we decide how much banging of the desks we wish to do in each case, and/or whether we want to go to the House of Commons and ask for direction in this regard. That's just to remind you about that--that a committee of the House of Commons has already made a request and been turned down by DFAIT.
Commissioner, Madame Lavallée asked you about the spirit of the act as well, and your opinion of the spirit of the act. Before we get to Mr. Martin, is it the spirit of the act, in your view, that if you do not ask for a document by its exact name, you don't get it?
Information Commissioner, Office of the Information Commissioner of Canada
No. Categorically--
Information Commissioner, Office of the Information Commissioner of Canada
I just commented to Madame Lavallée that I think Parliament wanted to make that clear in the amendments it brought under Bill C-2 to section 4(2), wherein it has now essentially said that the head of agency has a duty to assist in every reasonable way. If you use the wrong vocabulary in your request, but your intent is somewhat clear, it's absolutely unacceptable that they would say they're sorry, but you didn't ask the right question.
Liberal
The Chair Liberal Tom Wappel
That is very important in terms of the investigation we're undertaking.
Mr. Martin is next.
Pat Martin NDP Winnipeg Centre, MB
I think that's a very valuable point, Mr. Chairman.
In the little time I have, I'm not going to spend a lot of time on the libel chill slapsuit that Mr. Reid is engaged in here to try to silence opposition MPs from getting to the truth of the Afghan detainee issue, other than to say that I hope, Mr. Walsh, you will, when you have more time, review that a specific section of the act was struck down in the Juliet O'Neill case. As of late 2006, in fact, there are changes to the treatment of documents, etc., held by people for different reasons.
I will point out, too, that every page of the document that we all enjoy here today was released under access to information--at the bottom of the page you can see the code--so we have no idea if it was released in this form or in some other form.
I'm not going to dwell on that. Let me simply say that we were horrified by and disappointed in the bureaucrats who came to testify before this committee on Tuesday, in terms of both their attitude and tone and the content of their testimony. They asked for an extra 10 days to prepare for this meeting and then showed up with no files, and I mean no files. They had a blank notepad to take notes as they asked questions.
We called these witnesses. Just for your information, Mr. Commissioner, because I know you'll be investigating this whole file, we asked for specific information about two specific ATIP inquiries. They said they couldn't come when they were called because they needed ten days to prepare. When they came here, they came with two assistant staff people and two witnesses and no documents whatsoever--a clean desk. To me it was an insult to this committee.
Again, this idea that it's like Rumpelstiltskin or something, in that you have to say the magic word before the gold starts to flow, is an insult to the general public in terms of access to information. These guys reminded me of that Yes Minister TV show in which Sir Humphrey says something like “You can have good government and you can have open government, but, Minister, you cannot have both.” That's what these guys reminded me of sitting there.
Clearly, in the cases we know of, they dragged their feet and took double the length of time they should have for these files, and then they were uncooperative with the applicants in asking the right question, which is the point the chairman made. The question asked if they could please send us the human rights reports that the government gets or keeps; it was taken to mean for every country, and there is no such report--but for specific countries there are, and no one asked if we would like to narrow down our request.
I know I'm supposed to be asking questions and not just making a speech here, sir, so I will ask about the report.
NDP
Pat Martin NDP Winnipeg Centre, MB
Well, thank you.
We're very interested in and grateful for the report, Mr. Marleau; congratulations on the first report under your tenure. I'm horrified that the Privy Council Office gets an “F”, a failing grade--
Liberal
The Chair Liberal Tom Wappel
Mr. Martin, I know you're supposed to ask questions. I'm going to restrict all questions to the subject matter we're studying. If you have specific comments about the Privy Council insofar as the Afghanistan 2006 document is concerned, by all means proceed, but we're not going to get into Mr. Marleau's specific report or any part of it today. We can certainly have a meeting to that effect later on if we want, but today we're studying the document and the things surrounding it. If you have any questions of either of the witnesses with respect to that issue or some of the answers or non-answers that you felt the witnesses gave, or whatever, please go ahead.
NDP
Pat Martin NDP Winnipeg Centre, MB
I wasn't clear on that.
The point I was getting to was that we believe that there may have been political interference. To put it this way, we heard witnesses testify before this committee—citizens who applied for information under the access to information laws—that they believe there was political interference in the administration of these particular claims, and perhaps there's a pattern or a motif developing here. If the PCO has an “F” in terms of their commitment to freedom of information, I think we have a serious problem, because certainly that is the attitude of this government, and the same culture of secrecy that allowed corruption to flourish under the Liberals seems to be alive and well under the Conservatives, notwithstanding this--
Liberal
